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Fridays With Rogers Partners

11th Hour Change in Discovery Plan Deemed “Hiccup”: Motions for Costs Dismissed

This morning, at our weekly meeting, Angie Bellehumeur discussed the court’s decision in 1479021 Ontario Inc. v Hawkesbury (Town of) et al., 2020 ONSC 4570, which involved a motion and a cross-motion for costs arising from cancelled discoveries.

The plaintiff corporation commenced a subrogated action in the amount of $80,000 against a builder, architect and municipality.

The parties were operating under a discovery plan first proposed by the plaintiff in June 2019. This initial plan and all subsequent iterations proposed to produce David Friesen as the plaintiff’s representative for the purposes of discovery.

Mr. Friesen is an independent insurance adjuster who was retained to investigate and assess the plaintiff’s insurance claim and the necessity of the remedial work. He has detailed knowledge of the damages.

Three days prior to the discoveries, counsel the defendants advised that they did not want Mr. Friesen produced for discovery because he did not have knowledge of liability issues. Instead, they wanted to examine the plaintiff corporation’s sole director and owner, Mr. Lanthier.

Plaintiff’s counsel had been preparing Mr. Friesen for discoveries and was shocked by this  last minute change. He did not think he could prepare Mr. Lanthier on such short notice.

Counsel for the defendants suggested to simply proceed with the discovery of the three defendants and to examine Mr. Lanthier at a later date, or to examine Mr. Friesen and reserve the right to examine Mr. Lanthier. These proposals were rejected.

The discoveries were cancelled and the plaintiff sought costs thrown away. In response, the defendants brought cross-motions for costs.

Justice MacLeod noted that rule 29.1 imposes a requirement that parties agree to and update a written discovery plan. The point of this discovery plan is to avoid delay, complexity and wasted costs due to the disputes about scope of discovery. The court stated that there is a duty to engage in ongoing discussion and to update the plan as necessary.

The defendants were within their right to insist on examining an officer or director of the plaintiff corporation, but this issue should have been anticipated at the time of the original discovery plan. The court called this unfortunate.

Justice MacLeod agreed it was wrong for the defendants to have requested a different witness just prior to the discoveries, but also found the plaintiff’s decision to unilaterally cancel discoveries to be unreasonable.

The time spent reviewing and preparing for discoveries with the expectation that Mr. Friesen would act as the plaintiff’s representative was deemed to not be time wasted, as the documents will still be germane to the discoveries and will certainly be germane if there is a trial. Therefore, the plaintiff’s motion was dismissed. The defendants’ cross-motion was also dismissed as it was clearly retaliatory.

The lesson from this decision is that counsel should consider far in advance of discoveries which witness they want to examine on behalf of a corporate party. This will prevent last minute cancellations of discoveries, delay in the litigation, and disputes over costs.